maguindanao martial law has no legal basis

we will be running a series of posts in this blog that will look into the governments action against the ampatuans in connection with the maguindanao massacre.

we will be picking up relevant quotations from news articles to collapse them into a whole.

For her part, Sen. Miriam Defensor-Santiago said the martial law declaration had no legal basis. Santiago noted the absence of an actual rebellion and ideological motivation to rise up against the government. She also said that public safety was not endangered by the “crimes committed by the warlords.”

On the floor, Santiago explained that the framers of the 1987 Constitution envisioned actual, not imminent rebellion. Until yesterday, she said there was no media footage or pictures of two groups “shooting at each other.”

“The Constitution imposes two conditions for martial law; there should be a state of actual rebellion and public necessity requires it. These conditions do not exist today,” she said.

“Hence, I humbly submit this general test for constitutional martial law: Is martial law a necessity for the existence of the state? The answer is ‘No.’ I further submit this particular test: Is there an actual rebellion, and does public safety require martial law? Again, the answer is ‘No.’”

Santiago said the penal code defines the crime of rebellion as “rising publicly and taking arms against the government for the purpose of removing from the allegiance to said government or its laws.” In other words, she said rebellion was an open, organized and armed resistance to established government.

Santiago pointed out that PP 1959 did not even claim that there was a state of actual rebellion which, she said, was a “fatal flaw.”

She said the proclamation’s claim of “heavily armed groups in the province of Maguindanao have established positions to resist government troops” was not a condition contemplated by the Constitution.

Santiago also reminded the Cabinet officials that rebellion was a political offense, not a common crime and, thus, carried a lighter penalty than murder.

She said the essence of a rebellion was “ideological motivation,” and since it was absent there was no rebellion in the first place.

She later explained to reporters that the Ampatuans were neither “communists nor fascists” but mere warlords. “I say again, show me the rebellion,” she told her colleagues.

The second condition warranting martial law is that “public safety requires it,” she said.

“But crimes committed by warlords against each other are basically threats to the safety only of their respective camps,” Santiago said, suggesting that “what they constitute are not threats to public safety per se, but acts of terrorism.”

She said when two groups were quarreling, “they are not danger to public safety, but they are threat to each other.”

In a petition filed Thursday, Christian Monsod, a member of the 1986 Constitutional Commission and a former chair of the Commission on Elections, and Ateneo de Manila University lawyer Carlos Medina Jr. said there was no factual basis for Presidential Proclamation No. 1959 because there was no actual rebellion or invasion—the only grounds for martial law that are allowed under the Constitution.

In their petition, Monsod and Medina said there was “absolutely no factual or legal basis to support the finding of existence of rebellion.”

They said there was no declaration by the Ampatuans or their supporters of an intent to overthrow the government, or of any public uprising by them that would endanger public safety.

Monsod and Medina also said there was “no showing that the alleged failure to function of the local judicial system and other government mechanisms in Maguindanao endangered public safety.”

“It is evident that the President and respondent (Ermita) are desperately grasping at straws and ascribing political motive where there is clearly none,” they said.

“The mere presence of armed groups without a clearer statement as to their actual identity or purpose cannot be taken to inevitably and automatically imply the face of rebellion or invasion,” they said, adding:

“All there is, is a vague assertion that local governments and courts in the area have ceased, refused or have otherwise been unable to perform their functions.”

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